[Congressional Record Volume 151, Number 146 (Monday, November 7, 2005)]
[Senate]
[Pages S12420-S12422]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         TREATMENT OF DETAINEES

  Mr. ROCKEFELLER. Mr. President, I commend Senator Levin and others 
for their leadership in proposing this amendment. I am proud to be an 
original cosponsor of the amendment based on the belief that a 
comprehensive, objective, and independent investigation into the 
collection of intelligence through the detention, interrogation, and 
rendition of prisoners is long overdue. While I am a strong supporter 
of the amendment, I regret greatly the fact that we have been forced to 
seek the creation of a national commission on such a critically 
important matter that falls squarely within the oversight 
responsibility of the Congress. Unfortunately, Congress's unwillingness 
to carry out these oversight duties in the past year has left us with 
no remaining alternative but to seek the creation of a national 
commission.
  Why do I say this? The collection of intelligence through 
interrogation and rendition is an extremely important part of our 
counterterrorism effort. The interrogation of captured terrorists and 
insurgents is, in fact, one of the most important of intelligence 
tools. We must ensure that those interrogations are carried out in a 
proper and effective manner. This tool, as with all others, must be 
applied within the bounds of our laws and our own national moral 
framework, and it must be subject to the same scrutiny and 
congressional oversight as every other aspect of intelligence. This, 
unfortunately, has not been the case.
  Despite the critical importance of interrogation-derived intelligence 
and the growing controversy surrounding retention, interrogation, and 
rendition policies and practices, the Congress has largely ignored the 
issue, holding a limited number of hearings that have provided limited 
insight.
  More disturbing, the Senate Intelligence Committee, the Senate 
committee charged with overseeing U.S. intelligence programs and the 
only one with jurisdiction to investigate all aspects of this issue, is 
sitting on the sidelines and effectively abdicating its oversight 
responsibility to media investigative reporters.
  As the Intelligence Committee's vice chairman, I have been pushing 
for the past 10 months for a formal investigation into the legal and 
operational

[[Page S12421]]

questions at the heart of the detention interrogation controversy, as 
has my colleague from the State of Michigan, Senator Levin.
  My proposal that the Intelligence Committee conduct an investigation 
into this matter was rejected. A decision was made that the 
Intelligence Committee, as it is charged to do, would not formally 
examine the legal and operational aspects of our detention and 
interrogation program despite compelling and disturbing evidence that 
serious, possibly criminal, abuses had occurred.
  Now, this decision is particularly curious given the litany of 
investigations carried out by the Intelligence Committee in the past. 
In recent years, our committee has produced detailed investigative 
reports into prewar intelligence on Iraq, technology transfer to China, 
the bombing of the USS Cole, and the shooting down of the missionary 
plane in Peru, and on and on. In fact, on July 30, 1999, a few years 
before he became our current chairman, Senator Pat Roberts wrote to 
then-Chairman Richard Shelby and Vice Chairman Bob Kerrey requesting an 
investigation into the intelligence related to the downing of CDR 
Michael Scott Speicher's F-18 plane in the early stages of the Persian 
Gulf war.

  The committee responded favorably to Senator Roberts' request, 
conducted the investigation, and produced a report. Each of the 
committee reports was produced as a result of formally authorized 
investigations, and each was a constructive contribution to 
understanding not just how and why intelligence failures occur but what 
action should be taken to avoid them in the future. Our unanimously 
approved first phase of our Iraq report last July, which was the 
weapons of mass destruction aspect, was a rather thorough and 
devastating critique of the collection and analytical failings of our 
intelligence community prior to the war that has provided, frankly, a 
very critical momentum to an intelligence reform movement that was 
already gathering steam and ended up in the passage of landmark 
legislation in December, which most people would have said a couple of 
months earlier was not possible. Yet when presented with a similar set 
of compelling reports on how the United States detains and interrogates 
prisoners, the majority on the committee has prevented us from pursuing 
an investigation.
  Why? Well over a year has passed since the appearance of photographs 
graphically portraying the abuse of Iraqi prisoners at Abu Ghraib 
prison. As my colleagues know, these images and other reports of abuse 
provided a powerful propaganda tool to our terrorist enemies. Since 
then we have seen a steady stream of accusations relating to the way 
the U.S. military and intelligence agencies treat individuals in their 
custody. Allegations of mistreatment have surfaced wherever the United 
States holds prisoners overseas--across Iraq, Afghanistan, and at 
Guantanamo Bay, Cuba.
  Troubling new revelations have become an almost daily occurrence, 
with a disturbing number of these instances resulting in prisoner 
deaths. At least 26 prisoners have died in American custody, and the 
unsettling charge has been leveled against the United States that we 
are exporting torture through rendition practices that lack 
accountability.
  Who can honestly say that these events and allegations are not 
serious enough to warrant an Intelligence Committee investigation? My 
good friend and chairman of the Senate Armed Services Committee, 
Senator John Warner, believed such an investigation was needed back in 
February of this year, and at the February 18 open Intelligence 
Committee hearing on worldwide threats, which we do once a year, 
Senator Warner remarked:

       And there's an issue out here, I say to my distinguished 
     chairman and ranking member and colleagues on the committee, 
     which I think we've got to address both in my committee and 
     in this committee, and that is the manner in which we gain 
     intelligence from those that are captured, either on the 
     battlefield or in other areas.

  My hope was that sort of congressional inquiry referenced by Senator 
Warner back in February would have become a reality.
  The Armed Services Committee and the Intelligence Committee with 
their respective oversight of the military and intelligence communities 
could have provided the sort of complementary reviews into troubling 
allegations swirling around our interrogation of prisoners in 
Afghanistan, Iraq, and, as I said, Guantanamo Bay. Regrettably, our 
efforts and those of Senator Levin to authorize and conduct such an 
investigation have not succeeded. We are now, therefore, left by 
default with the remaining option of turning over this responsibility 
to a national commission to carry it out.
  If the Senate oversight committees are either unwilling or unable to 
tackle the tough but necessary questions associated with detention, 
interrogation, and rendition of prisoners, then we should step aside, 
if we have to, regrettably, and let the work be done by those 
unfettered by other considerations.
  I am confident that this new national commission, like the 9/11 
Commission, and the Weapons of Mass Destruction Commission before it, 
will provide the sort of comprehensive review of U.S. policy and 
practices relating to the treatment of detainees that has been absent 
so far.
  Our amendment calls for a 12-month investigation in which all aspects 
of all of this must be looked at. More specifically, the 10-person 
commission will examine and report upon the policies and practices of 
the United States relating to the treatment of individuals detained 
since September 11, 2001. The commission will also be tasked to 
evaluate causes and factors that have contributed to the alleged 
mistreatment of detainees, including an assessment of either those 
directly or indirectly responsible for the mistreatment.
  I am worried about the legal aspects of our underpinning, and I will 
more or less close with this: On May 18, 2005, the Central Intelligence 
Agency issued a statement that ``CIA policies on interrogation have 
always followed legal guidance from the Department of Justice.'' That 
may or may not be so, but was that legal guidance supportable? That is 
what you have to ask. Was it supportable? Was it factual?
  A lengthy legal opinion on the Department of Justice interrogation 
practices, which had been issued in secret, in August, 2002, was 
quickly repudiated by the White House when it became public in June of 
2004 and was then superseded by a public Justice Department legal 
opinion in December of 2004.
  As that episode shows, secret interpretations of the law beyond the 
oversight of the Congress are an invitation to potentially great error.
  What supporting roles do the CIA and FBI play in the interrogation of 
suspects of military-run prisons and how are their activities 
coordinated? It has been publicly reported that the CIA requested that 
a number of prisoners held in Iraq not be registered and be kept from 
international inspection; therefore, the so-called ghost detainees.
  More recently, it has come to light that FBI officials lodged 
strenuous complaints about what they considered to be the mistreatment 
of prisoners held at Guantanamo Bay. These reports and others strongly 
suggest that different agencies are operating under different sets of 
rules, or they are not coordinated. This is a recipe for disaster which 
will come back to haunt us one of these days.
  The commission will also review policies regarding the controversial 
practice of the United States of rendering detainees to foreign 
governments for interrogation.
  Our practice of contracting out to foreign governments the 
interrogation of detainees is, to this Senator, particularly troubling. 
There have been numerous reports of individuals turned over by the 
United States to a foreign government for interrogation allegedly being 
tortured.
  In addition to the ethical and legal considerations associated with 
this practice, the veracity of the information gained from these and 
other detainees is called into question if these statements were made 
under physical coercion. Therefore, it is important that we have a 
thorough evaluation of the current policy guidelines and field 
directives for when it is appropriate to render a detainee to another 
country and what intelligence is gained from such a practice.
  More specifically, we must examine the validity of assurances that 
the

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United States is given when detainees are rendered to other countries 
that they will not be tortured.
  The PRESIDING OFFICER (Mr. Coburn). The Senator's time has expired.
  Mr. ROCKEFELLER. I hope my colleagues will support the amendment. I 
thank the Presiding Officer.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I do have the privilege of being an ex 
officio member of the Intelligence Committee. I served 8 years on that 
committee, and my concluding years was as ranking member. I have a very 
high respect for that committee and find, from my participation, 
together with others on it, under the leadership of Chairman Roberts 
and Senator Rockefeller, that the committee does a very good job.
  Mr. President, I wish to speak in opposition about this question of 
the need for this country to establish an independent commission to 
investigate the detention and interrogation operations conducted by the 
Department of Defense and other elements of the Government in 
conjunction with the war on terrorism.
  Mr. President, I ask unanimous consent to speak in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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